Marginal note:Notice of ineligible claim

• 104. (1) An officer may, with respect to a claim that is before the Refugee Protection Division or, in the case of paragraph (d), that is before or has been determined by the Refugee Protection Division or the Refugee Appeal Division, give notice that an officer has determined that

  • (a) the claim is ineligible under paragraphs 101(1)(a) to (e);

  • (b) the claim is ineligible under paragraph 101(1)(f);

  • (c) the claim was referred as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter and that the claim was not otherwise eligible to be referred to that Division; or

  • (d) the claim is not the first claim that was received by an officer in respect of the claimant.

• Marginal note:Termination and nullification

  (2) A notice given under the following provisions has the following effects:

  • (a) if given under any of paragraphs (1)(a) to (c), it terminates pending proceedings in the Refugee Protection Division respecting the claim; and

  • (b) if given under paragraph (1)(d), it terminates proceedings in and nullifies any decision of the Refugee Protection Division or the Refugee Appeal Division respecting a claim other than the first claim.

Extradition Procedure

Marginal note:Suspension if proceeding under Extradition Act

• 105. (1) The Refugee Protection Division and Refugee Appeal Division shall not commence, or shall suspend, consideration of any matter concerning a person against whom an authority to proceed has been issued under section 15 of the Extradition Act with respect to an offence under Canadian law that is punishable under an Act of Parliament by a maximum term of imprisonment of at least 10 years, until a final decision under the Extradition Act with respect to the discharge or surrender of the person has been made.

• Marginal note:Continuation if discharge under Extradition Act

  (2) If the person is finally discharged under the Extradition Act, the proceedings of the applicable Division may be commenced or continued as though there had not been any proceedings under that Act.

• Marginal note:Rejection if surrender under Extradition Act

  (3) If the person is ordered surrendered by the Minister of Justice under the Extradition Act and the offence for which the person was committed by the judge under section 29 of that Act is punishable under an Act of Parliament by a maximum term of imprisonment of at least 10 years, the order of surrender is deemed to be a rejection of a claim for refugee protection based on paragraph (b) of Section F of Article 1 of the Refugee Convention.

• Marginal note:Final decision

  (4) The deemed rejection referred to in subsection (3) may not be appealed, and is not subject to judicial review except to the extent that a judicial review of the order of surrender is provided for under the Extradition Act.

• Marginal note:Limit if no previous claim

  (5) If the person has not made a claim for refugee protection before the order of surrender referred to in subsection (3), the person may not do so before the surrender.

Claimant Without Identification

Marginal note:Credibility

106. The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.

Decision on Claim for Refugee Protection

Marginal note:Decision

• 107. (1) The Refugee Protection Division shall accept a claim for refugee protection if it determines that the claimant is a Convention refugee or person in need of protection, and shall otherwise reject the claim.

• Marginal note:No credible basis

  (2) If the Refugee Protection Division is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis for the claim.

Cessation of Refugee Protection

Marginal note:Rejection

• 108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:

  • (a) the person has voluntarily reavailed themself of the protection of their country of nationality;

  • (b) the person has voluntarily reacquired their nationality;

  • (c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;

  • (d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or

  • (e) the reasons for which the person sought refugee protection have ceased to exist.

• Marginal note:Cessation of refugee protection

  (2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1).

• Marginal note:Effect of decision

  (3) If the application is allowed, the claim of the person is deemed to be rejected.

• Marginal note:Exception

  (4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.

Applications to Vacate

Marginal note:Vacation of refugee protection

• 109. (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.

• Marginal note:Rejection of application

  (2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection.

• Marginal note:Allowance of application

  (3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified.

Appeal to Refugee Appeal Division

Marginal note:Appeal

• 110. (1) A person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection, or a decision of the Refugee Protection Division rejecting an application by the Minister for a determination that refugee protection has ceased or an application by the Minister to vacate a decision to allow a claim for refugee protection.

• Marginal note:Restriction on appeals

  (2) A determination that a refugee protection claim has been withdrawn or abandoned may not be appealed.

• Marginal note:Procedure

  (3) The Refugee Appeal Division shall proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept written submissions from the Minister, the person who is the subject of the appeal, and a representative or agent of the United Nations High Commissioner for Refugees, and any other person described in the rules of the Board.

Marginal note:Decision

• 111. (1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions:

  • (a) confirm the determination of the Refugee Protection Division;

  • (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or

  • (c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate.

• Marginal note:Referrals

  (2) The Refugee Appeal Division shall make the referral described in paragraph (1)(c) if it is of the opinion that a hearing is required or if it has allowed an appeal by the Minister that was based on a question of the claimant’s credibility.

Division 3Pre-removal Risk Assessment

Protection

Marginal note:Application for protection

• 112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).

• Marginal note:Exception

  (2) Despite subsection (1), a person may not apply for protection if

  • (a) they are the subject of an authority to proceed issued under section 15 of the Extradition Act;

  • (b) they have made a claim to refugee protection that has been determined under paragraph 101(1)(e) to be ineligible;

  • (c) in the case of a person who has not left Canada since the application for protection was rejected, the prescribed period has not expired; or

  • (d) in the case of a person who has left Canada since the removal order came into force, less than six months have passed since they left Canada after their claim to refugee protection was determined to be ineligible, abandoned, withdrawn or rejected, or their application for protection was rejected.

• Marginal note:Restriction

  (3) Refugee protection may not result from an application for protection if the person

  • (a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality;

  • (b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years;

  • (c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or

  • (d) is named in a certificate referred to in subsection 77(1).